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Termination of employment is the ending of the employment relationship. Where it arises from the conduct of the employer, albeit a failure to affect a genuine redundancy or constructive dismissal – where the employee resigns due to the conduct of the employer- this can give rise to an unfair dismissal claim.

An unfair dismissal claim is dealt with in the Fair Work Commission under the terms of the Fair Work Act 2009 (Cth).  For employees protected from unfair dismissal a claim in the Fair Work Commission can be substantially quicker and more cost effective than an action alleging breach of contract, which is the remedy available for employees not protected from unfair dismissal.

NOTE: A time limit applies for the filing of an unfair dismissal remedy in the Fair Work Commission (as at January 2023 it is 21 days after the dismissal took effect). A filing fee also applies (with exceptions) to the filing of an unfair dismissal remedy (as at January 2023 it is $77.80).

FAQs

What is an unfair dismissal claim?

It is an application by the employee under the Fair Work Act for reinstatement or compensation in response to the employer unfairly terminating their employment.

The employee must establish that the dismissal was harsh, unjust or unreasonable to obtain a remedy.  This is, there is no valid reason to terminate the employment (having regards to the employee’s conduct or capacity) and if there is a valid reason, then termination of the employment is too harsh a penalty having regards to several factors.

Defending an unfair dismissal claim?

An employer can defend an unfair dismissal claim on the basis that the termination of employment is a justified response to the employee’s conduct or lack of capacity.

Employers should also consider if there are grounds to prevent the employee from maintaining the unfair dismissal claim. These include, was the unfair dismissal application lodged outside the 21-day time limit, is the person truly an employee and is the employee covered by an industrial instrument or earns less than the high-income threshold.  These issues are termed “jurisdictional objections” and while most are determined before the substantive case is heard and determined, some while only be determined at final hearing. 

What is reinstatement and compensation?

Where the employee is successful, they can seek reinstatement to the same or no less favourable position, but more commonly, compensation. Many factors mitigate against reinstatement. Compensation itself is capped to half of the employee’s annual income or $81,000.00 (as at January 2023), whichever is the lower.  Compensation is for economic loss and not for hurt and humiliation or other type general damages.

The process of an unfair dismissal claim?

On filing an unfair dismissal application, and barring any jurisdictional objection, the matter will first be referred to conciliation to engage the parties in a settlement discussion. A conciliation will normally take place within two months of filing the unfair dismissal application. Failing resolution, the matter is then listed for arbitration hearing before a member of the Fair Work Commission. The Fair Work Commission records indicate that approximately 75% of all claims resolve (with or without compensation) at conciliation.

At Burke Mangan Lawyers we bring many years of experience and understanding of the Fair Work Act to successfully protect the interests of employers and employees. We have a proven track record to obtain you the right outcome.

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Unfair Dismissal

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Unfair dismissal in Australia refers to the termination of employment that is considered harsh, unjust, or unreasonable, and is protected under the Fair Work Act.

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